Ayers v. Domtar Industries

374 S.W.3d 188, 2010 Ark. App. 208, 2010 Ark. App. LEXIS 176
CourtCourt of Appeals of Arkansas
DecidedMarch 3, 2010
DocketNo. CA 09-964
StatusPublished

This text of 374 S.W.3d 188 (Ayers v. Domtar Industries) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ayers v. Domtar Industries, 374 S.W.3d 188, 2010 Ark. App. 208, 2010 Ark. App. LEXIS 176 (Ark. Ct. App. 2010).

Opinion

ROBERT J. GLADWIN, Judge.

11Appellant Bobby Ayers appeals the June 22, 2009 decision of the Arkansas Workers’ Compensation Commission finding that Ayers failed to prove that he sustained a compensable injury to his lumbar spine. On appeal, Ayers contends that the Commission’s decision is not supported by substantial evidence. We affirm.

Statement of Facts

At the hearing before the Administrative Law Judge, Ayers contended that he sustained a compensable lumbar-spine injury on July 30, 2007, and underwent spine surgery at the Veteran’s Administration Hospital in Little Rock, Arkansas, on January 22, 2008. He claimed that Domtar Industries and Liberty Mutual Insurance (Domtar) should pay for that surgery. He also claimed that he was entitled to temporary-total-disability benefits from November 5, 2007, to a date to be determined, all associated medical benefits, and attorney’s fees. He | ¡.argued that Domtar would not be entitled to an offset under Arkansas Code Annotated section 11-9-411 (Supp. 2009).

Domtar contended at the full hearing that Ayers first reported a pop in his mid-to-upper back; that he was then treated and released for that condition and later went to the VA Hospital and had surgery at a different location on his back; that Ayers’s condition was not the result of an injury at work but was a low-back condition degenerative in nature and preexisting. Domtar contended that, should the claim be found compensable, it would be entitled to an offset for the payments now coming from the VA.to Ayers pursuant to Arkansas Code Annotated section 11-9-411.

Ayers, age thirty, testified that he served in the Marine Corps for approximately four years after high school and then received an honorable discharge. While in the Marine Corps he developed problems with his low back:

Q Now, you also testified that during the time that you were in the Marines you developed some physical problems that were not the result of a specific injury but just — you started to have back problems, correct?
A Yes.
Q Did you receive any kind of back treatment while you were in the service?
A Yes.
Q And was that at the L5-S1 level of your back?
A Yes.
Q And did you have an MRI done or any kind of diagnostic testing while you were in Hawaii?
|SA Yes.
Q' And do you know what the results of the testing were?
A I believe they said it was a bulging disc.
Q At that level that we spoke of?
A Yes, L5-S1.
Q Did you receive any kind of treatment like therapy or injections for that?
A Yes.
Q Did you have access to medical treatment while in Hawaii?
A Yes.

Ayers qualified for a service-related disability of forty percent awarded for problems with his back, knee, and stomach. As a result of his forty-percent disability from the military, he started receiving, and still receives, $1,136.00 per month from the VA. After leaving the military in 2000, he took some time off work and then worked for some construction companies and worked for the Sevier County Road Department before going to work for Domtar Industries sometime in 2002. The parties stipulated that Ayers sustained a compensable thoracic-spine injury on July 30, 2007, and Ayers testified as follows regarding the incident that lead to his stipulated compen-sable thoracic-spine injury:

Q What happened on that day that would cause you to feel like you injured yourself?
A Well, I had to push a roll into a machine and I had already pushed in six — no, five rolls. On the sixth one, it’s in the very back and you don’t have anywhere to put your foot or nothing against, you’ve just got to kind of push it in. [4When I pushed it in, something popped in my back.

Ayers claimed that the same incident that caused his compensable thoracic-spine injury also caused him to have a compensable lumbar-spine injury. Dom-tar controverted the lumbar-spine injury in its entirety.

Ayers testified that in the weeks prior to July 30, 2007, he reported to a VA doctor at the Texarkana Clinic with complaints about his low back. As a result of his encounter with the VA doctor, he was prescribed muscle relaxers. He testified that between his appointment at the VA sometime in July of 2007, and July 30, 2007, he was taking muscle relaxers for his low back.

On August 16, 2007, Ayers underwent an MRI of the lumbar spine on the orders of neurologist Dr. Steven Cathey. Dr. Joseph Robbins read Ayers’s August 16, 2007 lumbar-spine MRI and opined the following:

Subligamentous protrusion at the L5-S1 level which, combined with the right fa-cette hypertrophy, causes primarily mild to moderate right L5 foraminal narrowing. There is no severe root impingement or significant encroachment upon the thecal sac. No acute disk extrusion.

Dr. Cathey did not recommend surgery, but prescribed physical therapy. Dr. Cathey released Ayers for work on November 5, 2007. Ayers then went to Dr. Dennis McDonnell, who performed surgery at L5-S1 on January 22, 2008. When Ayers continued to complain, McDonnell recommended that Ayers might benefit from another surgery at L5-S1.

The Administrative Law Judge found as follows:

It is clear to this examiner that the L5-S1 disc protrusion opined by Dr. Robbins is |fimarkedly similar to the L5-S1 “bulge” that the claimant testified he had while in the Marine Corps. Once again, the claimant testified that his L5-S1 bulge was confirmed by MRI while he was in the military and as a result combined with other conditions which lead to his 40% disability compensation he now receives from the Veterans Administration.
It is clear to this examiner that the claimant had a preexisting problem at L5-S1 level for several years prior to working for Domtar and that it is equally as clear that the claimant continued to have those problems immediately up to July 30, 2007. The claimant’s preexisting lumbar back condition was such a problem that the claimant had to seek medical treatment mere days prior to the July 30, 2007, incident where the claimant sustained a stipulated thoracic spine injury.
In making my determination that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable lumbar spine injury on July 30, 2007, I do not disregard Heritage Baptist Temple v. Robinson, 82 Ark.App. 460, 120 S.W.3d 152 [150] (2003), which states that employment circumstances that aggravate preexisting conditions are compensable. I simply do not find that the claimant aggravated his preexisting lumbar back condition.

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Bluebook (online)
374 S.W.3d 188, 2010 Ark. App. 208, 2010 Ark. App. LEXIS 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ayers-v-domtar-industries-arkctapp-2010.